An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own, except that it makes the following modifications:

The numbered paragraphs in the FINDINGS OF PROBABLE FACT section are deleted, and the following substituted to more accurately and completely reflect the evidence of record:

1. Carbage, the complainant, is a male, and his date of birth was April 20, 1953.

2. Genesis, the respondent, provides rehabilitation services to men and women under probation and parole supervision.

3. At all times relevant to this matter, Carbage was employed by Genesis as a transitional living specialist. In this position, Carbage was responsible for monitoring the activities of men and women utilizing Genesis's transitional living facilities.

4. Carbage was aware of Genesis's requirement that employees record as work time only the time they were actually performing work duties, and was aware that time spent on a lunch break was not to be recorded as work time.

5. On February 12, 2001, Carbage was placed on probation by Genesis for 45 days due to safety and maintenance deficiencies in certain of the transitional living facilities for which he was responsible.

6. Some time prior to October 8, 2001, Genesis was directed by the Wisconsin Department of Corrections, the state agency with which it was under contract to provide the subject rehabilitation services, that male employees were no longer to be permitted to enter the transitional living facilities for females. As a result, on October 8, 2001, Genesis instructed Carbage and the other male transitional living specialists to no longer enter those facilities. Carbage's hours were not reduced as a result of this change in his responsibilities. Carbage was advised on October 8 that, if he had time during his work shift, he should do laundry and perform cleaning duties at the male transitional living facilities to which he was assigned.

7. On October 12, 2001, Carbage left work for more than two hours for his lunch break but recorded on his time sheet that he had been gone for 30 minutes. Co-worker Michael Hudson, who was less than 40 years of age at the time, engaged in the same practice that day.

8. On October 16, 2001, Otis Lockett, one of Carbage's supervisors, advised Carbage that he had been observed leaving the work site at 6:15 p.m. on October 12 and not returning until 8:30 p.m. Carbage responded to Lockett that he usually took long lunches and believed that it was permissible to do so because he was "on call." Lockett stated that there was no "on call" status and never had been, and that there was always work for transitional living specialists to do such as cleaning the facilities and doing the laundry, as Carbage had been instructed on October 8.

9. Lockett terminated Carbage on October 18, 2001. Lockett stated as the basis for this termination Carbage's falsification of his time sheet on October 12 and Carbage's initial denial to Lockett on October 16 that he had been away from the work site on October 12 longer than an hour. Hudson was terminated on October 18 for falsification of his time sheet on October 12.

10. Carbage filed the subject discrimination complaint with the EEOC on August 12, 2002.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Carbage's charge of discrimination was filed when it was received by the EEOC on
August 12, 2002. (1) As a result, only those acts occurring on or after October 16, 2001,
i.e., within the actionable 300-day period, are cognizable here. Carbage, in his petition, asserts that he actually crafted and mailed an earlier charge which was lost by the EEOC. However, Carbage did not provide proof of, or even mention, this earlier charge during the parties' discussion of the timeliness issue at the hearing in this matter or at any other stage of the proceedings before the department, and there is no reference in the case file to the existence of an earlier charge. The commission consequently concludes that Carbage failed to sustain his burden to prove that his charge was timely filed as to those allegedly discriminatory actions occurring on October 8, 2001.

Probable cause

Carbage alleges that he was discriminated against based on his age and his sex when he was terminated on October 18, 2001.

Carbage failed, however, to sustain his burden to prove age discrimination since a co-worker who was not only significantly younger than Carbage, but not in the protected age category, was terminated on the same day as Carbage for the same reason.

Carbage failed to establish a prima facie case of sex discrimination (2) in regard to his termination, i.e., he failed to prove that he was replaced by a female, treated differently than a similarly situated female, or any other circumstance which would create an inference of sex discrimination. Moreover, Carbage did not prove that the legitimate, non-discriminatory reason offered by Genesis for his termination,
i.e., falsification of his time sheet for October 12, was a pretext for discrimination. Carbage failed to prove that Lockett's decision to terminate him was inconsistent with Genesis's policies or practices or was otherwise not reasonably justified. Carbage, as a transitional living specialist, generally performed his assigned duties independently and without supervision. As a result, trust was a critical element of his employment relationship with Genesis, and Carbage's admitted violation of that trust on October 12 reasonably justified Lockett's decision to terminate him. The record does not support a conclusion that Carbage's sex played any part in Lockett's decision. Although Genesis did not prove that Carbage lied to Lockett during their October 16 meeting by first explaining that he had been away from work no more than an hour on October 12,
i.e., there is no competent evidence rebutting Carbage's testimony denying that he had done so, Carbage's falsification of his time sheet is sufficient alone to support a conclusion that his termination was reasonably justified, and that pretext has not been demonstrated here, even under the less rigorous probable cause standard.

In his petition, Carbage challenges the Wisconsin Department of Corrections' decision to establish female gender as a bona fide occupational qualification for certain of Genesis's transitional living specialist positions or at least for certain duties of such positions, as well as Genesis's decision to hire Elaina Ferra, a female, rather than Carbage, for a supervisory position. However, neither of these allegations was a part of Carbage's charge, nor apparently raised by Carbage during the proceedings before the department, and neither allegation is, as a result, cognizable by the commission as a part of this appeal.

Finally, Carbage argues that, because Genesis is under contract with the Wisconsin Department of Corrections, a state agency, the administrative law judge, as a state employee, had a conflict of interest. However, the administrative law judge has not been shown to have any personal stake in the outcome of this litigation, and his status as a state employee is insufficient alone to support a conclusion of bias or an appearance of bias. Moreover, the potential pecuniary impact of the outcome of this litigation on any individual state employee would be too speculative and de minimis to constitute a cognizable conflict or appearance of conflict of interest. Finally, the commission is not limited to deciding whether an administrative law judge abused his discretion, but, pursuant to Wis. Stat. § 111.39(5)(b), conducts a de novo review, acting as an original fact finder and reviewer of the administrative law judge's decision.
See, Clemons v. OIC of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003). As a result, in the absence of some indication that an administrative law judge's conduct of the hearing improperly influenced the creation of the record in some way, which is not indicated here, remand for hearing before a different administrative law judge would not be necessary or appropriate even if some bias or appearance of bias was present.

(1)( Back )
The date a charge is filed with the EEOC is also deemed to be the date the
charge is filed with a state agency with which the EEOC has a worksharing
agreement, such as the Equal Rights Division. See,
Keup v. Mayville Metal Products, ERD Case No. 9302193 (LIRC June 22,
1995).

(2)( Back ) In
reviewing disparate treatment claims under the Wisconsin Fair Employment Act,
such as those advanced by the complainant here, the commission has adopted the
burden-shifting method of analysis originally set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). Under the McDonnell
Douglas analysis, the burden shifts from the complainant to prove a prima
facie case of discrimination; then to the respondent to articulate some
legitimate, nondiscriminatory reason for its actions; and back to the
complainant to prove that the reasons offered by the respondent were a pretext
for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 25 FEP Cases 113 (1981).